MPAA tries to get sneaky (again) with broadcast flag legislation

The MPAA is readying another attempt at getting Congress to pass broadcast …

According to the Electronic Frontier Foundation, the MPAA is trying to ram broadcast flag legislation through Congress again, this time as an amendment to a budget reconciliation bill. Ever since the US Court of Appeals for the District of Columbia ruled that the Federal Communications Commission overstepped its authority in mandating that all consumer electronic devices capable of receiving digital television signals incorporate support for the flag, the media industry has been working on getting Congress to enact the flag.

This latest attempt involves tacking on an amendment to a budget reconciliation bill. Reconciliation bills are an optional part of the government spending cycle, where Congress attempts to cut some mandatory spending in order to bring expenditures closer in line with the budget for the fiscal year. Since reconciliation is about cutting spending—something that always sounds good—such legislation cannot be substantially changed by the Budget Committee once it is presented, nor can it be filibustered.

With those limitations, reconciliation bills are a great way to get "stealth" legislation through Congress. Get it tacked on before it goes before the Budget Committee where it will get a straight "yea" or "nay" vote as part of the larger package, have it sped down to the floor of the House and Senate for another quick up or down vote, out to a joint conference to work out differences between the House and Senate versions, and on to the president's desk for signing. Once Congress passes complementary legislation mandated in the reconciliation bill, in a figurative blink of an eye the broadcast flag goes from a gleam in the MPAA's eye into your living room.

When the MPAA tried a similar move in June—tacking the broadcast flag on to appropriations legislation—they failed once the word got out about what it was they were trying to accomplish. When the flag was first mandated by the FCC in 2003, the reasoning behind it was speeding the adoption of digital TV. However, digital TV adoption has been just dandy without the flag. What is truly at the heart of the broadcast flag is broadcasters' ability to control content after it has left the airwaves and entered your living room. In short, it's another face of DRM.

Some TiVo users got an unwelcome preview at what a broadcast flagged future will look like when their TiVos forced them to delete content. While you and I may not like it, being able to mandate how long a recorded program can be retained or even whether it can be recorded at all sounds mighty fine to the MPAA. When the original flag was killed in court, I noted that the fight was going to move out of the courts and into Congress. The MPAA lost round one in June. Contact your congressionalrepresentatives if you want them to go 0 for 2.